I must note that I have been arguing (mostly informally but sometimes formally) for shorter sentences in all of these cases, so I am a bit biased when I contend that these sentences all seem to me a lot more excessive than having Libby serve at least some time behind bars.

Critically, my chief goal in this post is not to assert that all the persons should be able to escape all punishment. Indeed, as President Bush stressed in his commutation statement, Libby still has not (yet) escaped all punishment. Rather, I wish primarily to urge anyone and everyone defending President Bush's sentencing determination in the Libby case to explain why all these less prominent defendants — most of whom are now locked in a cell while Libby now makes plans for the paid lecture circuit — don't also merit some executive sympathy.

» One Of These Kids Is Doing His OwnThing from tekel
One of the themes that is emerging about Bushs obstruction of justice is that its a clear departure from Bushs usual stance on criminal sentencing. The President has had ample chance to demonstrate his approach to criminal justic... [Read More]

Tracked on Jul 3, 2007 12:33:34 PM

Comments

Why are you choosing vets and federal officers. Why do they get to get off easy? Or was it just a coincidence that you only chose current or former government employees?

Have you been able to ascertain whether any of these individuals have submitted pardon applications to the President? It seems to me that based on this decision, Victor Rita's application should *absolutely* be granted . . . but perhaps I'm naive!

P.S. You've got a broken link in the Morton Berger paragraph - it goes to a Genarlow Wilson post.

Posted by: Jay Macke | Jul 3, 2007 9:25:54 AM

If I were Martha Stewart, I'd be really pissed off.

Posted by: David in NY | Jul 3, 2007 9:38:49 AM

Dear Professor Bergman,

E would like to know why my husband Robert David Blandford received an eight year sentence along Co[Defendant with David Henson McNab for importing lobster tails from Honduras..
Please see article below written by Cato Institute, Gene Healy
and Jonathan Rauch.

Begging His Pardon

Posted Monday, April 02, 2007 1:36 PM by Gene Healy

Comment Here: 0 Comments

Greetings, Justice Talking readers: happy to be able to join you. Information about the Cato Institute should be directly above. As for me, I'm a recovering lawyer whose policy interests range from executive power to overcriminalization. On the former, see the Cato White Paper (coauthored with my colleague Tim Lynch) Power Surge: The Constitutional Record of George W. Bush. On overcriminalization, some of what I've written can be found here and here.

"Overcriminalization" is an umbrella term for what I see as three disturbing legal trends:

the use of the criminal law to punish behavior that used to be handled with civil lawsuits or fines, or even to cover behavior that’s just none of the government’s business.
runaway federalization of crime:Though the Constitution leaves the ordinary administration of criminal justice to the states, over the last four decades, the federal government has increasingly involved itself in local criminal matters, leading to over 4,000 federal crimes on the books.
The use of heavy-handed criminal law enforcement tactics against people guilty of minor offenses at worst and in some cases people who aren’t guilty of crimes at all.
The criminal law used to be society’s last line of defense—reserved for behavior that everyone recognized as seriously wrong. Now it’s becoming Congress’s first line of attack--a way for legislators to show they’re serious about whatever social problem is currently making headlines, whether it’s drugs, corporate scandal, or email spam. One result of that trend is an incarceration rate unrivaled in the Western world--one that passes even regimes like those in Iran, Cuba, and Russia.

With over two million Americans in jail, many of them for nonviolent offenses, heartbreaking stories are legion. Jonathan Rauch chronicles one of them in his Friday column for the National Journal, Honduran lobster-fleet owner David Henson McNab, currently doing hard time for importing lobster tails that were the wrong size and that were packaged in clear plastic bags rather than in cardboard boxes. McNab and three American seafood dealers ran afoul of the Lacey Act, a federal statute that makes it a crime to import fish or wildlife taken "in violation of any foreign law." McNab and two of the three Americans--citizens with no prior criminal record--got eight years in federal prison.

As Rauch points out, despite his inordinate fondness for the unilateral exercise of executive powers, President Bush has been unconscionably timid in exercising one of the few executive powers that is truly unilateral--the pardon power. McNab and his codefendants would be excellent candidates for a presidential pardon. In an article for the Legal Times, I recommend a few more candidates (none of whom are Scooter Libby...).
Pardon Libby? Maybe, but Not Alone
Why David Henson McNab deserves clemency

Jonathan Rauch | April 2, 2007

Will President Bush pardon I. Lewis (Scooter) Libby? Everyone is wondering. But it is the wrong question. The right question is: Will he pardon anyone else?

It seems doubtful that Libby's recent, four-count felony conviction will be overturned on appeal. Unless he receives presidential clemency, Vice President Cheney's former chief of staff is likely to do prison time for lying to federal investigators. His case for clemency is not without its strengths, but its rightful place in the queue is far, far behind that of David Henson McNab.

McNab has been doing time in a federal prison in Arkansas since August 23, 2001. Despite the Scottish name (and ancestry), he is Honduran. Until he went to prison, he owned and operated Caribbean Fisheries, a sizable company that harvested lobster and shrimp in Honduran waters.

In 1999, agents of the National Marine Fisheries Service, acting on a tip, seized one of McNab's shipments in Alabama. They found that about 4 percent of the lobsters were undersized, 7 percent were egg-bearing, and all were packaged in plastic bags rather than boxes. In consultation with the Honduran Ministry of Agriculture and Livestock, the federal agents determined that the shipment was in violation of Honduran (not American) law.

Presumably angling for a plea bargain, and wielding a U.S. statute that bars the importation of "any fish or wildlife taken, possessed, transported, or sold in violation" of foreign law, the feds threw the book at McNab. They charged him with smuggling and money laundering, the latter because he had received payment for the shipment.

Facing this draconian charge, McNab voluntarily submitted himself to U.S. legal proceedings. Because Honduras has no extradition for its citizens, McNab could have sat tight, out of reach of the American authorities. Instead, "he came here to clear the charges," says his attorney, Miguel Estrada of Gibson, Dunn & Crutcher. "He was a businessman. He said, 'You've got to be kidding.'"

It was no joke. At trial, he was found guilty and sentenced to more than eight years, plus forfeiture of nearly $1 million.

The conviction got the attention of higher-ups in the Honduran government, who were dumbfounded. They attested that the Honduran statute on whose basis McNab was convicted had, in fact, been repealed -- in 1995. They protested that authority to rule on Honduran law resided with the attorney general, not with the agriculture ministry bureaucrats who had incorrectly testified in McNab's case. In a November 2004 letter to President Bush requesting clemency for McNab, Ricardo Maduro, then the Honduran president, wrote: "Mr. McNab did not break any law of Honduras." Moreover, even if the law had been broken, the Honduran penalty would have been only a small fine.

Armed with those attestations, McNab appealed his conviction. And lost. In a 2-1 decision, a U.S. appeals court said that the trial court's reading of Honduran law was definitive for U.S. judicial purposes. He then appealed to the Supreme Court. It hears only a handful of the thousands of appeal petitions it receives every year, and McNab's was not among the lucky few.

In December 2004, McNab petitioned Bush for a commutation of his sentence. That would simply free him, not pardon him. Asked the status of McNab's petition, a Justice Department spokesman said, "The case is still pending and we cannot predict when a final decision will be reached; however, Mr. McNab's lawyer will be informed when final action has been taken in his client's case."

That lawyer, Estrada, notes that McNab's sentence will end in November 2008, or perhaps a few months earlier. "If he doesn't get it [commutation] from this president, he ain't never going to get it from nobody," Estrada says. But the months drag on. "I find the delay inexplicable," Estrada adds. "The only thing that occurs to me is that the prosecutors at main Justice are trying to run out the clock to have him serve out his whole sentence."

Here is a fact that historians may note with puzzlement: Bush, who is obsessively protective of unilateral executive power in every other sphere, has all but abandoned the most unequivocally unilateral power that the Constitution gives him. Presidents can grant pardons and commutations to anyone they please, for any reason or for no reason at all. That's because the Founders understood the excesses of bureaucratic justice. "The criminal code of every country partakes so much of necessary severity," Alexander Hamilton wrote, "that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel."

Prosecutors are paid to be relentless. Courts are bound to go by the book. The Supreme Court cannot reach down and undo a single sentence without potentially overturning a whole branch of law. Thus the Founders ultimately wanted justice to be acceptable and accountable not to a system but to an actual human being, a solitary conscience.

That conscience belongs, at the moment, to Bush, who doesn't seem to overtax it. According to Justice Department statistics, Presidents Truman through Ford granted a quarter or more of clemency petitions. The total fell to 12 percent under President Reagan, and then into the mid-single digits under Presidents George H.W. Bush and Clinton. Now, under George W. Bush, it has dropped to less than 2 percent. Bush appears willing to grant only the most uncontroversial of pardons: to a man who stole a car way back in 1948, for example, and to a savings and loan offender who was pardoned on his deathbed after serving seven years. And he has granted only -- count them -- three petitions for commutation, out of more than 5,000 received. That would put McNab's odds at about one-twentieth of 1 percent. He might as well win the lottery.

What happened? Afraid of controversy and of being seen as soft on crime, presidents have increasingly turned the clemency process over to career lawyers in the Justice Department -- who include, of course, the very people who bring the prosecutions. "There was an almost perfect storm of changes in the department that allowed the prosecutors to take charge, basically, and kind of strangle the pardon power in the department," says Margaret Colgate Love, who was the department's pardon attorney from 1990 to 1997 and is now in private practice. "My department didn't care," she recalls. "They trivialized the pardon power. It was not a high priority. It was no priority."

Under Clinton, the bureaucratic process all but ground to a halt. In four of his first five years as president, he granted no clemency at all -- only to release a chaotic flood of pardons on his way out the door. One of those pardons, of a tax fugitive named Marc Rich, brought down an avalanche of public protests and a congressional investigation.

Along came Bush. According to an Associated Press report in March, he learned to be wary of pardons as governor of Texas, after a county official whom he pardoned for a marijuana conviction was subsequently caught stealing cocaine. "Former governors tend to pardon less," says P.S. Ruckman, a political scientist at Rock Valley College who is writing a book on pardons. "Republicans tend to pardon less. And whenever a president follows a pardon controversy, they tend to cut off use of pardons. You put it all together, and there's no reason anyone would expect him to use the pardon power with great frequency."

Clemency has always been controversial, and it should be. (The Founders counted on the "damnation of fame" as the best check on abusive pardoning.) But it was nowhere near as rare or bureaucratic as it has become. Ruckman notes that John L. Sullivan, the famous boxer, once obtained a pardon for his nephew by walking into Theodore Roosevelt's White House and asking for one. Today, a vetting process that was intended to help guide clemency has effectively shut it down.

The Founders would not have batted an eye at a Libby pardon; the use of clemency as a political tool dates back to George Washington. What would astonish them is the army of people, many at least as deserving as Libby, whom Bush has not pardoned. They might point out, if they were around today, that Bush's neglect of clemency in such cases as McNab's makes his use of it all the harder in such cases as Libby's.

Interviewed by e-mail, McNab's wife, Nessie, said their son gave up college in order to run the fishing business, not very successfully. "Keeping the business going without Henson has been an impossible mission for us," she said. "Our sales have dropped more than in half." Rising debt threatens the business's survival, she said; McNab's father and mother are both ill; McNab was not allowed to attend his brother's funeral; he knows only two of his four grandchildren. A pardon for Scooter Libby? Maybe -- but not while Henson McNab rots in prison.

Jonathan Rauch is a senior writer and columnist for National Journal and a frequent contributor to Reason. The article was originally published by National Journal.

Sincerely Dianne Blandford

Sincerley dianne Blandford

Posted by: Dianne Blandford | Jul 3, 2007 9:57:21 AM

The 30 year sentence for my client Chalana McFarland came to my mind when I read Bush's words. She is an African American, with a small child---a first offender, former attorney convicted of mortage fraud in the Northern District of Georgia. If a mere 30 month sentence is excessive, what should we think of 360 months?

Posted by: Lynn Fant | Jul 3, 2007 9:59:17 AM

None of the cases you cite were the result of a partisan prosecution of the very questionable crime of not being fortcoming to investigators. There was really no underlying crime here, since Plame was not covert when her name was "leaked;" and yet despite no underlying substantive offense that can be proven, Libby gets jail for lying about a non-offense.

It's Kafka-esque. I would agree that Martha Stewart should not have been imprisoned for the identical bogus "lying about a non-crime" offense.

The rest of the individuals you cite were imprisoned for crimes that deserve punishment, such as drug possession or distribution, or impeding or lying during investigation of a shooting incident. Apples and oranges.

Posted by: | Jul 3, 2007 11:00:36 AM

In response to Lynn, many of the "Abramoff" defendants have also been convicted for lying aside from the merits of the original investigation. Furthermore, Bush spoke of the "excessive" nature of the sentence, which goes to some apparent defect in the overall process.

In spite of all the complaining on the Left, Bush is now on record as stating that the sentencing guidelines can be excessive. This is significant because his administration has strongly opposed any efforts to weaken the guidelines authority and (Clinton also) has argued that in fact, the guidelines are virtually always correct and should seldom be departed from.

The truth is, that there is very little about Scooter Libby's case that differs from other run of the mill white collar cases under the federal system. Unlike what Bush claimed, such defendants virtually never have a criminal record and virtually never received jail time before the imposition of the sentencing guidelines. Bush has now publicly stated that the guidelines can result in excessive sentences and I expect to see many defendants and their lawyers using Bush's language in future briefs. I also think that Courts of Appeal are likely to take Bush at his word and will begin to grant many more departures for defendants in general, given their often excessive nature.

So, those of us who believe the system is unfair should recognize that Bush has done a potential favor for all current and future defendants.

Posted by: william | Jul 3, 2007 11:30:45 AM

Yeah -- that's sensible -- if the underlying crime turns out to not have occurred, that lying to investigators along the way isn't a big deal. That's logical.

I am at utter disgust at the Libby sentence being overturned by the President. They have been trying to do so many changes in the mandatory minimums and he hasn't stepped in. When it is a friend it is alright to step in right. WRONG! That just goes to show us, it is not justice for all. It really makes you think even harder about our (injustice) system. Just another let down for many of us poor people and minorities. The judges should really be thinking twice about there discretion in sentencing. Their sentencing is a joke to rich people for sure now. I throw my hands up in disgust. This just shows us for sure who mandatory minimums affect. What about the families of the minorities? They don't have families? They do because I am family member of one as well. They don't care. Keep the bad poor people off the streets is what I see in my mind, from their perspective. If you are rich and break the law and have a family the law does not apply toward you. Why should it apply toward any other person? Us as an African American and Mexican are pretty much screwed. THE POOR BROKE PEOPLE THAT DON'T STAND A CHANCE! It is just a way of slavery all over again.

Posted by: jubria | Jul 3, 2007 11:49:52 AM

"partisan prosecution"

This is the biggest joke in the bag of those who are undermining the rule of law in this country. This prosecution was requested by the Central Intelligence Agency which is run by Republican appointees. It was approved by a Republican justice department, conducted by Republican prosecutors before a Republican judge. The Democrats controlled no branch of government at the time it began. Calling it "partisan" is, and was, nuts.

Your commenters may be entitled to their own opinions, Prof. Berman, but they are not entitled to their own facts.

Posted by: David in NY | Jul 3, 2007 11:55:06 AM

Was not one of the articles of impeachment against Richard Nixon that he offered pardons to cover up criminal activity? I believe so. As the New York Times said today in its editorial "Soft on Crime": But in this case, Mr. Bush did not sound like a leader making tough decisions about justice. He sounded like a man worried about what a former loyalist might say when actually staring into a prison cell.

Posted by: David in NY | Jul 3, 2007 11:58:21 AM

So, those of us who believe the system is unfair should recognize that Bush has done a potential favor for all current and future defendants.

We'll see just how much of a "favor" it is. Not much, I suspect. While Bush made that argument in this specific case, he hasn't made any kind of general argument that the laws are too harsh. I'm sure prosecutors in the DOJ showed up for work this morning, and continued to do what they always do. Let's just wait and see if AG Alberto Gonzalez reverses the department's position on "topless guidelines." Don't hold your breath.

And even if President Bush did believe that the laws are too harsh, they don't change till Congress changes them. Courts don't have the authority to ignore the law, just because an elected official (even the president) believes it should be different.

Yeah -- that's sensible -- if the underlying crime turns out to not have occurred, that lying to investigators along the way isn't a big deal. That's logical.

Sensible, perhaps. But Congress didn't write the law that way.

Posted by: Marc Shepherd | Jul 3, 2007 12:00:31 PM

"Plame was not covert"

Proof, please. The CIA disagrees.

Posted by: NCProsecutor | Jul 3, 2007 12:08:45 PM

Mr. Shepherd, Of course, the prosecutors will do what they always do – as they should. The AG’s position on topless guidelines doesn’t mean much, since it isn’t getting much traction.

However, the president’s comments, are entitled to some weight, and prosecutors will have to respond to the argument that a given defendant’s circumstance is “Just like Libby’s.”

S.cotus, you are absolutely right that the AG's "topless guidelines" proposal hasn't gotten any traction. Nevertheless, it remains the department's official position, and I would be very surprised if it changes. The Libby commutation, whether you support it or not, is very clearly an anomaly in a law-and-order administration that, in every other context, has been pro-guidelines. The president's statement in an isolated case has no precedential value unless his whole administration (including the appointed officials who serve at his pleasure) actually make it their policy and legislative agenda in similar cases. Will that happen? I think we all know that it will not.

Posted by: Marc Shepherd | Jul 3, 2007 12:25:28 PM

What is being missed here is that what Bush did has not happened anytime recently in the federal system. Bush commuted a federal sentence givem to a well-known or famous defendant to prevent his imprisonment on the very eve thereof. This is far different from the situations involving Marc Rich (whom few in the U.S. had ever heard of and who was abroad anyway) or Nixon, who had not even had a case brought against him yet.

Bush has established the notion that our system can be so excessively unjust that it is necessary for someone to step in and correct its excesses in the middle of the process. In this case it was the President, but in the future it will be judges exercising their discretion.

The Justice Department can only put out so many fires and one reason why it loves the guidelines is their predictability. Bush has thrown a monkey-wrench in that and has also made it far more difficult for the administration to support mandatory minimums and harsh sentences in general, as well as made it difficult to argue that guidelines sentences are reasonable.

As a criminal defense attorney who loathes the President, all I can say is thank you, George.

Posted by: william | Jul 3, 2007 12:48:10 PM

to: Lynn Fant

Note the Following from the Volok Conspiracy blog:

Politics" and the Libby Prosecution: The Scooter Libby case has triggered some very weird commentary around the blogosphere; perhaps the weirdest claim is that the case against Libby was "purely political."

I find this argument seriously bizarre. As I understand it, Bush political appointee James Comey named Bush political appointee and career prosecutor Patrick Fitzgerald to investigate the Plame leak. Bush political appointee and career prosecutor Fitzgerald filed an indictment and went to trial before Bush political appointee Reggie Walton. A jury convicted Libby, and Bush political appointee Walton sentenced him. At sentencing, Bush political appointee Judge Walton described the evidence against Libby as "overwhelming" and concluded that a 30-month sentence was appropriate. And yet the claim, as I understand it, is that the Libby prosecution was the work of political enemies who were just trying to hurt the Bush Administration.

I find this claim bizarre. I'm open to arguments that parts of the case against Libby were unfair. But for the case to have been purely political, doesn't that require the involvement of someone who was not a Bush political appointee? Who are the political opponents who brought the case? Is the idea that Fitzgerald is secretly a Democratic party operative? That Judge Walton is a double agent? Or is the idea that Fitzgerald and Walton were hypnotized by "the Mainstream Media" like Raymond Shaw in the Manchurian Candidate? Seriously, I don't get it."

Your comments

Michael Levine

Posted by: Michael Levine | Jul 3, 2007 12:54:23 PM

Dianne Blandford, that is OUTRAGEOUS. Have you tried hounding the media? This needs a lot of publicity and now is a good time for it.

There are lawyers who are very media savvy and they must realize this is the perfect time to publicize this case. I hope, really, sincerely hope, one of them will jump on this case. It's as outrageous as anything Professor Berman uses as an example of runaway prosecutions.

I'm patting myself on the back for not cursing in the above.

Good luck.

Posted by: George | Jul 4, 2007 9:40:01 PM

I am the wife of a man that got 180 months for 6 2nd degree burglaries, 1 1st degree (it was orginaly a 3rd degree but the prosecutor upped it. (My husbands father had told the police that my husband had broken into the prosecutors house. It was the under person that was new that offered the plea. They had no evidence to connect my husband to the first degree burglary, besides his word that he was outside of the apartment calling for me because I went up there and her saying (after talking to the landlord that was pissed at us for moving out) that he was inside the apartment when she came home. He has priors and was told that if he did not take the plea of 180 months he was going to get 80 years. There was 1 other charge and that was credit card fraud against his dad but we had him on tape saying that he gave us permission. ( He is a big drinker). I am looking for advice on this excessive sentence. This is the sentence that you get for first degree murder, and none of these were violent. He does not even have a violent offense on his record. ANYONE PLEASE HELP!

Posted by: Jess Strle | Mar 29, 2008 12:56:32 PM

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